Whiffen v Milham Ford Girls’ School

For indirect sex discrimination, an employer must justify the particular condition that caused the disadvantage, rather than merely the wider policy in which it appears. A policy may be facially gender-neutral, but that is capable of producing indirect discrimination once it operates to disadvantage a considerably smaller proportion of women. The employer must show objectively justifiable grounds and establish that the measure is appropriate and necessary to its aims. Evidence must address the employer’s actual needs and the necessity of the discriminatory condition. Where the employer failed to do so before the tribunal, the issue should not ordinarily be remitted for a second evidential opportunity.

Mrs Whiffen taught at Milham Ford Girls’ School for five and a half years under successive fixed-term contracts. Her contract was not renewed during a redundancy situation because the school’s policy dealt first with temporary staff, without allowing them to enter the redundancy selection process. She claimed indirect sex discrimination under section 1(1)(b) of the Sexual Discrimination Act 1965.

The Employment Tribunal dismissed her claim on 21 July 1998. The Employment Appeal Tribunal dismissed her appeal on 28 October 1999. The Court of Appeal considered whether the permanent-contract condition had a discriminatory effect and, if so, whether the respondents had justified that specific condition.

Henry LJ delivered the leading judgment. Buxton LJ and Sir Swinton Thomas agreed. The appeal was allowed.

1. For the purposes of section 1(1)(b), the relevant condition was not a general redundancy policy. It was the requirement that an employee had to hold a permanent contract to participate in the redundancy-avoidance selection process. The claimant established equal application, a considerably smaller proportion of women able to comply, and detriment.
2. The narrow comparison pool had already been determined. Within that pool, all two male basic-grade teachers were permanent, whereas seven of nine female teachers were permanent. The resulting comparison of 100 per cent and 77.7 per cent was capable of satisfying the statutory test. The small size of the pool did not justify rejecting the result, particularly after the respondents had successfully argued for that pool and sought to reopen the issue only late.
3. The Employment Tribunal asked the wrong justification question. The respondents had to justify excluding fixed-term employees from the selection process, including employees with long service, not merely justify the existence of a redundancy policy. The policy’s apparently gender-neutral character could not answer the justification issue once its discriminatory effect had been established.
4. The accepted justification test, stated in Bilka-Kaufhaus GmbH -v- Weber van Harty [1987] ICR 110 and set out in Staffordshire County Council -v- Black [1995] IRLR 234 at 237, required objectively justifiable grounds and measures appropriate and necessary to achieve the employer’s aims. The respondents identified neither the relevant needs nor the necessity of the condition and called no evidence addressing that question.
5. The failure was not remitted for a fresh justification hearing. That would have given the respondents a second opportunity to make a case on different evidence. The matter was remitted to another Employment Tribunal solely to determine damages, with agreed costs as recorded in the order.

1. Court of Appeal allowed the appeal and remitted the matter to another Employment Tribunal solely to determine damages.
2. Employment Appeal Tribunal dismissed Mrs Whiffen’s appeal on 28 October 1999.
3. Employment Tribunal dismissed the discrimination claim on 21 July 1998.